This paper has been prepared in question and answer form to discuss how the status and the value of courts has diminished since the 1978 Constitution which is an authoritarian Constitution.
The present degeneration of the court system makes the courts an obstacle to the rule of law and the enhancement of justice. However, this problem is little discussed within the framework of the Constitution although lamentations on the judiciary’s collapse is a common topic talked about daily by citizens and lawyers alike. The article also tries to highlight that separation of our power doctrine exists in the country only in words. Understanding of this issue is vital to the understanding of all other contemporary issues on the rule of law and democracy in Sri Lanka.
q. Is there any basis to say that the 1978 Constitution has diminished the value of the courts?
a. We are now looking at this problem 28 years after the experience of living under this Constitution. The experience clearly shows that the quality of the judiciary has severely been diminished. To inquire into the link between the Constitution and the actual situation we must first go into the principles of constitutionalism. The 1978 Constitution was a departure from constitutionalism. In fact, although the 1978 Constitution is called a ‘Constitution’ it was a declaration which said that several basic facets of constitutionalism have been removed from the Constitution. Some of these facets are the supremacy of the law over everyone and the supremacy of the Constitution above all laws; the accountability of the executive to the parliament and the judiciary; the linkage of the government to the governing institutions through the responsibility of a chain of command; the upholding of the law and order by the executive accepting the responsibility for the maintenance of law and order; and finally, the safeguarding of basic human rights for all, within a framework with especial emphasis on safeguarding minorities.
q. What is the position of the 1978 Constitution on the supremacy of the law and the supremacy of the Constitution above all laws?
a. The most important article in the 1978 Constitution is article 35. This makes the Executive President immune from any legal action or omission, official or personal. It is section 35 (3) that is more to the point. It prevents law suits against the President even when he violates the Constitution other than three exceptional situations mentioned in this sub section. Thus, the President is not obliged to follow the Constitution and is free to act in contravention against the Constitution. When this matter recently came before the Court of Appeal [CA Application/2006] on matters regarding violations of the Constitution by the President in the appointment of persons to the Public Service Commission and the National Police Commission, the court held that Article 35 (3) provides blanket immunity to the President (for details please see SRI LANKA: Implications of Court of Appeal judgement on the 17th Amendment to the Constitution AS-139-2006). With power that applies also to the appointment of even superior court judges, the Executive President can function without restriction by any laws or any form of checks and balances. Also, since the President is allowed to contravene the Constitution, the supremacy of the Constitution itself is then diminished. The President is above the Constitution which means that he or she is above the law. When the overreaching legal situation has reached this level, there is hardly any meaning of constitutionalism.
q. Why is Article 35 considered of so much primary importance?
a. According to the 1978 Constitution, the executive head of the state is the President. The Prime Minister’s role is very limited. In the Sri Lankan Constitution there are no mechanisms recognised for the questioning of the actions of the President in parliament. The only form of censure against the President is an impeachment in the, parliament which is a serious political matter that requires the approval of a two-thirds majority. However, other presidential systems in democracies provide various forms of questioning of the President on a routine basis. Such systems are not available within the Sri Lankan setup. There is also no possibility for routine questioning of the Prime Minister. However, even if there were such avenues it would not be of much use as the ultimate responsibility for the actions of the government lies with the President. Flowing from this also is the diminished positions of the cabinet ministers. These ministers hold their positions at the pleasure of the President. Their work in the ministries, allocate limited opportunities for questioning them in parliament or in court. In the Sri Lankan Constitution the real decision maker is the Executive President and he is above the law in that no law suit can be brought against him. This is why Article 35 is the real central article of the 1978 Constitution.
q. How does the 1978 Constitution impact the courts?
a. The 1978 Constitution maintains the jargon of recognising the independence of the judiciary. However, this Constitution changed the structure of power so much that the words of separation means very little. This was demonstrated within just a few years of the Constitution being passed when a serious conflict developed between the Chief Justice (CJ), Neville Samarakoon, who was in fact brought in as Chief Justice from the unofficial bar by the Executive President himself. Chief Justice Samarakoon who was known to be a lawyer with a very wide practice probably took the word of the Constitution at face value and did not understand the change in the structure of power contained in the Constitution. However, After President Jayawardena consolidated his power, he wanted Neville Samarakoon to kneel down and accept the changed version of the relationship between the judiciary and the Executive President. This devastated Chief Justice Samarakoon and he devoted the last years of his office trying to fight back. Obviously there was no unanimous defense of the Chief Justice from the Supreme Court. When the most crucial decision on the constitutionality of the 1982 Referendum Bill came before the Supreme Court it was divided five to four and the CJ is known to have been among the minority of four who held against the Bill’s constitutionality. The scale has begun to change within the Supreme Court itself in favour of the Executive President. Chief Justice Neville Samarakoon who retired some time later died within a few years of his retirement. Those who were close to him report on their conversations with the Chief Justice and how much he was deeply disturbed and wounded by the transformation that was taking place. There are records of the long series of harassments by both the first and second presidents to bring the Supreme Court to understand the change of the power relationship in favour of the Executive President. This situation continued under other Chief Justices and Supreme Court judges but still the remnants of the older tradition of independence were still there despite quite visible forms of adjustment to the new reality. It was in the period of the fourth Executive President, who was elected as a protest against the first and second presidents that the relationship of the judiciary to the Executive President took an even more fundamental turn against the judiciary itself. With S.M. De Silva being brought to the Supreme Court by the fourth president, open collaboration between the Executive President and the Chief Justice developed. This went so far as to the Chief Justice imprisoning a minister who was a former colleague of the fourth Executive President who politically shifted his alliance by moving to the opposition party. Giving judgement over a comment made by this minister in some public meeting was considered contempt of court. This minister was then sentenced to two years of rigorous imprisonment. This, and many other forms of open allegiance to the fourth Executive President, are quite visible and left a deep impression on the legal profession. While there were divisions on this issue in the Supreme Court itself there were no open conflicts and the Chief Justice was able to keep the majority of judges on his side. The two remarkable exceptions who were in fact sidelined by the Chief Justice were Mark Fernando, the senior most Supreme Court Justice at the time and C. Wignesharan, both of whom retired and the latter expressed his disagreements in the strongest possible terms.[i] Later, while the fourth president was about to end her term, the Chief Justice changed his allegiance to the next Executive President and paved the way for his ascendancy into power by openly betraying the fourth Executive President. Thereafter, the Chief Justices political involvement with the incumbent Executive President was made blatantly visible. Again, the majority of the judges in the Supreme Court went along with the Chief Justice. However, two senior judges resigned form the JSC which has the powers of appointment, transfers, promotions and disciplinary control of judges below the Supreme Court and the Court of Appeals. In their resignations from the three member body, of which the third member was the CJ, they stated that they were resigning over a matter of conscience. (AS-018-2006, AS-028-2006). This indicated that they had reached a point where they could no longer work in the commission together with the CJ. Thus, a very strong and visible partnership has developed between the incumbent Executive President and the Chief Justice.
q. How far do the lawyers bring issues arising from constitutionalism to court?
a. Now these challenges are very rare. There are many reasons. One is the 1978 Constitution following the 1972 Constitution limited the power of judicial review only to review bills prior to passing them in parliament. On other matters interpretations of Article 35 has restricted access to court. Besides such legal issues there has been a breakdown of moral in the legal profession and also in circles of persons who used to take constitutional matters to court for adjudication. There is a general impression of futility of such actions. Many senior lawyers do not accept public law issues to be adjudicated before courts. Many arbitrary practices have also developed in dealing with cases. Bench fixing at the Supreme Court itself, where sensitive matters are brought before selected benches are often presided by the CJ himself. The habit of not stating reasons for the refusal to grant leave to proceed has become common. The encouragement of reaching settlements has taken over from the pursuit of cases to decide on matters of principle. Rough and impolite language and rudeness towards lawyers have prevented many lawyers from wanting to undertake public law issues. A general sense that an outcome of a case cannot be reasonably predicted on the basis of legal principles has not become the common perception of the leading circles of lawyers. The gaining of favours from the CJ is seen as a more probable way of proceeding in cases. That the CJ has prior knowledge about some important cases that are filed and that he even instigates cases being brought before him so that he could make important political determinations have also become a commonly talked of subject among many lawyers.
End Note:
[i] Q: You said in your last statement on the bench that there was a constrained atmosphere within the judicial system. How is it constrained and who is responsible for it?
A: My answers to your other questions must have enlightened your readers as to how such constrained atmosphere came to engulf the judiciary and who could be the cause for it.
The compulsions have come about due to an administration that expected a departmental hierarchical obedience from judges. In order to achieve such obedience wedges were driven into the system. Patronage to some and punishment to others were meted out. Comply or be condemned, was the underlying threat.
Errant politicians and policemen who should not have received any patronage from the judiciary were perceived as important persons and original court judges have been compelled to comply with orders illegally issued to protect or pamper such errant offenders. Judges who publicly recorded such issuance of orders by intermediaries on behalf of their principals were dealt with severely.
Perceived wrong judicial orders by judges must be challenged in the appropriate appellate court. Any attempt by persons howsoever highly placed to countermand such orders through extra judicial means must be considered to be a constraint on the original judiciary.
